FALL ISSUE 2021

Wildlife

BY: ANDREW D. CLIBURN AND HILLARY M. HOFFMAN

Despite centuries of federal and state policies that have resulted in extinction or endangerment for multitudes of wildlife species with cultural, ecological, and historical significance to Indigenous nations throughout the United States, many tribes have begun to attempt wildlife reintroduction in and near Indian Country, with or without federal or state support, and sometimes in spite of strident opposition. Recent efforts, including the reintroduction of bison to the Fort Peck and Wind River Reservations, the Nez Perce and Yurok Tribes’ release of California condors, and the Confederated Tribes of the Colville Reservation’s reintroduction of pronghorn antelope, have shown early signs of success. Tribes attempting to reintroduce endangered, threatened, or extirpated species have used a variety of legal and other tools to further their efforts, sometimes in combinations that reflect unique values or particular history connecting the tribe to the reintroduced species. The focus of this Article is an option that has received relatively little scholarly examination–the Tribal Wildlife Grant Program (“TWG” or “TWG Program”). The TWG Program presents a unique means by which tribes can establish, or reestablish, wildlife management frameworks largely free of federal oversight or intervention, allowing tribes to avoid certain complications of the federal-tribal legal relationship that have impeded many past tribal wildlife management efforts. The Program also allows tribes to choose when and how to partner with states, a significant improvement  over other wildlife conservation and management frameworks that used a federalism structure. Finally, the Program provides a mechanism for actualizing inherent tribal sovereignty for tribes that are willing to establish
positive laws in connection with their reintroduction efforts.

WIne Turbines

BY: DILLON DOBSON

This article will examine how tribes can synthesize Indigenous ingenuity and federal self-determination policy to strengthen their cultural and political institutions by developing sophisticated solar-based microgrids and leveraging blockchain technology. This article acknowledges that climate change is here to stay and seeks to provide indigenous peoples in the US with innovative community solutions that work toward tribal energy sovereignty (ES) by marrying Indigenous sciences and cultural knowledge with innovative technologies. This article examines some of the creative renewable energy and blockchain systems that Indigenous communities have been using and encourages tribal leaders to consider how such technologies can support one another to strengthen ES. By pragmatically leveraging inherent sovereignty, federal programs, and principles from international law, tribes can exert tribal energy sovereignty by building resilient systems to protect their cultures and economies from the ravages of climate change.

Section I clarifies the cultural context of this article and explores the immense importance of traditional cultural values. More specifically, Section I explores traditional Cowlitz practices, my identity as a Cowlitz man as an integral element of this article, and the connections between Cultural Sovereignty and ES Section II examines the political and economic realities facing Indian communities seeking to develop renewable energy by briefly exploring Federal Indian Law, the UN Declaration on the Rights of Indigenous Peoples, Native nation-building, and the benefits of decentralizing Indian affairs by moving from centralized federal management to decentralized tribal governance. Section III explores solar energy and microgrids generally and briefly explores three remarkable tribal  case studies. Section IV explores some of the specific ways that tribes can work toward solar and microgrid-based ES by leveraging cultural values, tribal programs, federal self-determination policy, and NGOs. Section V considers blockchain technologies generally and looks at some innovative ways Indigenous peoples in the US use them. Section VI considers how blockchain can support ES by allowing tribes to develop peer-to-peer (p2p), decentralized, community-energy systems. Section VII shares final conclusions on recommendations.

Image by AJ Colores

BY: EDWARD RANDALL ORNSTEIN

This paper examines the law enforcement response to the 2016 Standing Rock NoDAPL protests and evaluates whether this response violated international human rights law. Following an assessment of increasing militarization in U.S. policing, relevant international human rights law doctrine will be discussed. In particular, UN Human Rights declarations prohibit disproportionate armaments in policing, armed response to unlawful but unarmed protests, the deprivation of enumerated human rights, and the use of a hostilities paradigm suited to the battlefield instead of a community-caretaking focused law enforcement paradigm. The militarization at Standing Rock took the form of 76 law enforcement agencies coordinating with military contractors, both armed with less-lethal force to suppress anti-pipeline protests. This paper illustrates that the law enforcement response to the Standing Rock protests was disproportionate and in violation of customary international human rights law norms for policing, including the UN Basic Principles on the Use of Force and Firearms by Law Enforcement Officials (1990), and more broadly in the UN Universal Declaration of Human Rights (1948). These violations eroded relationships between Indigenous people, environmentalists, and the federal government, set a problematic example for foreign and domestic law enforcement departments, and endangered domestic compliance with international human rights law. In order to uphold international law, future police work should be mindful of the potential for international human rights law violation and averse to militarization disproportionate to the risks posed to officers.

Image by Federico Respini

BY: JOHN C. RUPLE AND DEVIN STELTER

Congress enacted the Congressional Review Act (CRA) in 1996 as part of the Gingrich Revolution. The CRA creates an expedited path for Congress to repeal agency rules. It also prohibits an agency from reissuing a new rule that is “substantially the same” as a repealed rule. But the CRA fails to define “substantially the same” and does not require Congress to identify its objections to a repealed rule. The uncertainty that results has a chilling effect on federal agencies. Indeed, Congress has struck down twenty rules using the CRA, and just two of those rules have been replaced. We use the Bureau of Land Management’s Planning Rule, which was struck down in 2017 using the CRA, as an example of how an agency that is statutorily obligated to enact a broad regulatory program can proceed following a joint resolution of disapproval. We argue here for repeal of the CRA. We also argue that absent a repeal, the safest path forward involves a rule that is more protective of the environment than the rule that was repealed by Congress—far from the outcome that congressional Republicans and the Trump Administration intended when they struck down the BLM Planning Rule.

Timber in Forest
BY: ANDIE J. SWEEDEN

This note seeks to discuss environmental racism and its connection to the diminishment of tribal sovereignty. First, there will be a discussion on the history and origin of tribal sovereignty, and the presence of tribes and Indigenous peoples in the United States. Second, there will be an examination of how the Clean Air and Clean Water Acts have been utilized to both diminish and promote tribal sovereignty. Next, case studies of state and federal actions against tribes will be analyzed to demonstrate the prevalence of environmental racism against Indigenous peoples today. Finally, this note generally seeks to address environmental racism in Indian country and how it works to diminish tribal sovereignty over land and natural resources—while also addressing how tribal sovereignty may be further used to combat serious environmental crises facing Indigenous communities across the United States.